CHAPTER 78-D PROTECTION OF PRIVATE CUSTOMER INFORMATION IN CONNECTION WITH RETAIL PURCHASE TRANSACTIONS
Section 78-D:2
78-D:2 Qualifying Foreign Sales and Use Tax Statute. –
I. In this section:
(a) "Adequate physical presence" means the presence of stores, offices, or other tangible locations within the foreign state at which the retailer or its affiliates engage in business within the foreign state through the activities of owners, officers, directors, partners, managers, employees, representatives, or agents, whether or not related to the activity of the retailer sought to be taxed.
(b) "Foreign state" means a foreign state or commonwealth which assesses sales or use tax on its residents with respect to the use, storage, and consumption of goods and services.
(c) "Goods" means tangible personal property intended for any use other than resale.
(d) "New Hampshire retail purchase transaction" means any sale of services or goods, or both, for any purpose other than resale in the regular course of business that is completed at a location within New Hampshire and where delivery or other first use of the services or goods occurs in New Hampshire.
(e) "Private customer information" means documents, records, and other information maintained in any form which contains the purchaser's name, address, telephone number, credit card, debit card or check number, a description of the goods or service purchased, the identity of any person for whom the goods or services were purchased, and the identification of the point of transfer of any goods or services that comprise a New Hampshire retail purchase transaction.
(f) "Retailer" means any individual, trust, estate, fiduciary, partnership, corporation, or other legal entity, located within the state that engages in New Hampshire retail purchase transactions.
II. No retailer shall provide to a foreign state any private customer information for use in the determination of sales or use tax liability of the customer in the foreign state or for use in the determination, collection, and remittance of sales or use tax by the retailer with respect to a New Hampshire retail purchase transaction, unless the foreign state has first provided to the retailer written confirmation that the foreign state provided prior written notice of its intent to collect a use tax on such retail transaction to the commissioner of revenue administration, and no later than 60 days following the commissioner's receipt of such notice by the foreign state, the department of justice has submitted to the commissioner its determination that the foreign state's sales and use tax statutes:
(a) Impose upon its residents a requirement to individually pay sales or use tax on the use, storage, or consumption of goods or services purchased in any other state;
(b) Specifically identify the goods and services to which the use tax applies and exemptions to the use tax;
(c) Require that the retailer or its affiliates have adequate physical presence to establish nexus with the foreign state for the imposition of an obligation of the retailer to determine, collect, and remit a sales and use tax with respect to purchases by foreign state residents;
(d) Require every resident to submit annually to the foreign state a statement (i) identifying each and every item subject to such foreign state's sales and use tax purchased outside such foreign state for storage, use or consumption within such foreign state during an applicable period, (ii) stating the value of such items purchased, and (iii) including a statement under penalties of perjury that such resident complied with the requirement stated in this chapter;
(e) Require its residents or the foreign state to provide the retailer at the time of a New Hampshire retail purchase transaction with information establishing whether or not the goods or services purchased in the state are intended to be used, stored, or consumed within the foreign state, and provide that any information supplied by its residents is irrefutably presumed to be correct and complete, and that the retailer may rely on such information regardless of the accuracy or completeness of such information;
(f) Require that any agency of such foreign state responsible for enforcing such foreign state's sales or use tax shall annually audit, investigate, or examine not less than 10 percent of the total use tax returns filed by residents of such foreign state with respect to each year;
(g) Require that any agency of such foreign state responsible for enforcing such foreign state's use tax shall conduct its audit, investigation, or examination practices with respect to residents' use tax returns in a manner that ensures that such practices are applied equally regardless of the state in which the sales transaction occurs, and that requires any such agency to file a public report annually demonstrating compliance with this nondiscrimination requirement;
(h) Create an irrebutable presumption that, in the absence of voluntary information by the resident, the goods or services purchased are intended to be used in the state in which they are purchased; and
(i) Explicitly impose use tax collection requirements on out-of-state retailers with respect to retail purchase transactions that are completed in those other states.